By: Albors Galiano Portales
The Spanish Supreme Court, in its Judgment No. 1130/2026 of 13 July, rules for the first time, following the entry into force of the Spanish Maritime Navigation Act of 2014 (hereinafter, the SMNA), on whether the traditional “principle of universality of the risk” remains in force. The facts are well known: the tuna vessel Txori Urdin sank on 25 September 2015, in favourable weather conditions, as a result of an ingress of water whose origin was never established. The hull insurance incorporated the Institute Fishing Vessel Clauses (hereinafter, the IFVC), English named-perils clauses which had, however, been reduced to their basic cover following the vessel’s loss of class.
The Commercial Court dismissed the shipowners’ claim on the ground that the assured had failed to prove that the sinking was attributable to a covered peril. The Court of Appeal of A Coruña, by contrast, upheld the claim, applying the principle of universality of the risk, which it held to remain in force under the current Article 417 SMNA and to have its origins in the Commercial Code, and reversing the burden of proof, so that it would be for the defendant insurers to establish the cause they sought to exclude (the internal problem in the vessel). The Supreme Court allows the appeal, sets aside the judgment of the Court of Appeal and, deciding the merits itself, upholds the dismissal of the claim.
The judgment is structured on two levels, one procedural [Ground 2] and the other substantive [Ground 3]. On the first level, the Supreme Court corrects the Court of Appeal by recalling that the assessment of expert evidence may not depart from the rules for the rational assessment of the evidence (sana crítica), that is to say, it must conform to the rules of logic, science and experience (Article 348 of the Civil Procedure Act). According to the Court, the Court of Appeal rejected the insurers’ expert reports on the ground that they rested on “mere conjecture and probabilities”, thereby conflating two categories that must be kept distinct: whereas conjecture does not meet the requisite standard, probability, once it reaches the threshold of prevailing probability (the “more likely than not” rule), does. Civil proceedings do not require absolute certainty, but rather a balance of probabilities. Since there were no conflicting expert reports (the only ones adduced as to the cause of the ingress of water being those of the insurers, which ruled out a collision with a drifting object by means of calculations and modelling), and the assured offered no better-founded alternative hypothesis, the Supreme Court’s criticism is that the Court of Appeal ought to have examined whether those reports met the standard of prevailing probability, and given reasons for rejecting them, rather than dismissing them in general terms as based on “probabilities”.
The second level, the substantive one, is where the decision’s real interest for maritime lawyers lies. The Court examines the function and scope of the principle of universality of the risk, under which all risks affecting the vessel in the course of navigation would be covered, save those excluded by law or by contract. The judgment links that rule to the characterisation of marine insurance as cover for a “complex risk”, whose various manifestations revolve around the perils of the sea or of navigation. It is, therefore, a rule that delimits cover (that is, determines which risks are deemed to be included), and that delimitation in turn bears on the burden of proof. Where universality is applicable, it is enough for the assured to establish the casualty and its apparent connection with navigation, whereas it falls to the insurer to prove the cause of exclusion; that evidential effect thus depends on the prior determination of the risks included in the contract. That said, the regime of marine insurance under the SMNA is non-mandatory (Articles 407.1 and 417 SMNA; and the Preamble, section X: “the risks insured are delimited by agreement”). Universality thus operates as a default rule, in the absence of express contractual delimitation.
In the case at hand, the insurance policy on the Txori Urdin was not silent, but incorporated the IFVC, which set out an exhaustive list of the risks covered and those excluded. The Chamber therefore applies the “principle of speciality of the risk” and not that of universality: since the clauses list exhaustively the risks covered and the exclusions, universality does not come into play, and could retain some meaning only in respect of unknown risks not mentioned in either of the two lists. Consequently, it fell to the assured to prove the materialisation of an included risk. It established the sinking of the vessel, but not that its cause fell within the cover agreed in the policy.
The Court supports that conclusion by reference to the evolution of the earlier codified regime (now repealed). Articles 755 and 756 of the previous Commercial Code of 1885 combined a statutory list of covered and excluded risks with the possibility for the parties to lay down in the policy such exceptions as they saw fit. From that sequence it infers the survival of universality as a default rule, compatible with freedom of contract. It adds that the case law predating the SMNA had confined itself to mentioning the principle, without attributing to it any effect on the burden of proof and without turning that mention into the ratio decidendi. Within the framework now in force, the judgment systematises the section of the SMNA devoted to navigational risks into three rules: the non-mandatory delimitation of the risks insured (Article 417); the likewise non-mandatory exclusion of certain objective and subjective risks, among them inherent vice, ordinary wear and tear and certain cases of gross negligence (Articles 419 and 420); and the mandatory exclusion linked to wilful misconduct (Article 419.1.2). That scheme is completed by Article 429 SMNA, which requires the insurer to indemnify the covered casualty on the terms of the policy and places on the assured the burden of proving the existence and extent of the loss.
Once universality had been ruled out and it had been established that the policy was governed by the IFVC -and hence by the principle of speciality-, the decisive question is no longer whether that principle remains in force. The burden of proving that the cause of the sinking corresponded to an insured risk rested on the assured, and, on the contrary, if the ingress of water was due to the poor condition or the inherent vice of the vessel (the hypothesis maintained by the insurers and not contradicted by any expert evidence from the assured), there would be no covered risk.
Applying those premises to the case, the Supreme Court concludes that, under the delimitation of risks resulting from the IFVC, it fell to the shipowner-assured to prove, according to the probability standard referred to above, that the loss was due to one of the included risks, and that proof was never adduced. The two levels thus converge on a single point: the burden of establishing the covered cause rested on the assured. The uncertainty as to the origin of the ingress of water therefore operates to the assured’s detriment under this named-perils contract, and justifies upholding the dismissal of the claim.